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Torbyn v. South River Sand Co.

Decided: December 7, 1949.

DOSHKA TORBYN, REPRESENTATIVE OF MIKI TORBYN, PETITIONER-APPELLANT,
v.
SOUTH RIVER SAND CO., RESPONDENT



McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

Petitioner, Doshka Torbyn, widow of Miki Torbyn, appeals from the judgment of the County Court of Middlesex County reversing the judgment of the Workmen's Compensation Bureau awarding compensation for permanent disability to decedent.

The procedural and factual situations in this case are so involved that it becomes necessary to discuss them at some length. Miki Torbyn, while employed by the South River Sand Company as a steam shovel operator, on January 4, 1933, was struck in the head, over both parietal bones, by a heavy digger's crane, knocking him off a platform to the ground, approximately 20 feet below, rendering him unconscious, from which he suffered lacerations of the head and injuries to his leg, shoulders and body. Shortly thereafter, he was seized with acute headaches, dizzy spells and hallucinations.

On May 25, 1933, he filed a Workmen's Compensation petition and, after a hearing on July 12, 1933, received an award for temporary disability of 12 weeks. The decedent never accepted this award, but on January 4, 1934, through new counsel, filed a petition for permanent disability. Respondent filed an answer to this petition alleging the prior award to be res judicata.

On May 16, 1934, decedent filed a further petition alleging that "the incapacity resulting from the accident * * * has increased subsequent to the date of the said award." Respondent filed an answer on June 2, 1934, asserting the same defenses as set forth in the answer to the January 4, 1934, petition, adding that the Workmen's Compensation Bureau had no further jurisdiction over the matter.

On November 20, 1934, respondent gave notice that on December 26, 1934, it would move for a dismissal of the petition for lack of prosecution. The order of dismissal was entered on January 31, 1935, "without prejudice to the legal rights of the petitioner." In view of the fact that we hereinafter hold that the supplemental petition filed by decedent

on May 16, 1934, was outstanding, it becomes unnecessary to discuss and decide the validity of the order of dismissal.

During the many months following Torbyn's injury, a marked change in his behavior and personality took place. He became threatening, wept, screamed, threw dishes and articles of furniture in his frequent fits of violence, and dug in the coal bin of his home for the body of the Lindbergh baby, whom he thought he had kidnapped. On March 18, 1935, Torbyn was committed to the State Hospital for the insane at Marlboro, where he died on April 21, 1944.

Subsequent to her appointment as guardian of her husband on December 10, 1937, payment of the temporary disability award was made to Doshka Torbyn.

On August 20, 1942, Doshka Torbyn, as representative of Miki Torbyn, filed a petition for compensation, to which respondent filed an answer, denying the allegations thereof and alleging that since it was filed more than two years after the date of the last payment, the claimant had no right of action under the New Jersey Compensation Act.

Following several hearings, commencing January 19, 1943, and concluded on February 21, 1946, the Bureau entered an order December 20, 1948, in which the petitioner was awarded permanent disability from March 18, 1935, to the date of the decedent's death, April 21, 1944.

Appellant contends (1) that the petition dated December 21, 1933, and filed on January 4, 1934, is still in full force and effect; (2) that the petition filed on August 20, 1942, was not filed out of time; that it was a method of reopening the prior order for temporary disability, because it was still within the time of the weekly payments due ...


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